R. v. P.D., 2020 BCPC 285

Citation: R. v. P.D. 2020 BCPC 285 Date: 20200727 File No: 3423-14 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REGINA v. P. D. F.M.A. Z. M.A. RULING ON VOIR DIRE OF THE HONOURABLE JUDGE T. ALEXANDER Counsel for the Crown: Christina Godlewska Counsel for the Accused, P.D. Karen Mirsky Counsel for the Accused, F.M.A. Larry Pippard Counsel for the Accused, Z.M.A. Robert Larmer Place of Hearing: New Westminster, B.C. Date of Hearing: July 13, 2020 Date of Ruling July 27, 2020 [ 1 ] The Court has declared a voir dire to determine the admissibility of the witness J.S.’s observations of a video that is either lost or

[ 1 ] The Court has declared a voir dire to determine the admissibility of the witness J.S.’s observations of a video that is either lost or unavailable. J.S. saw it once when it was forwarded to his cell phone through SnapChat. The Defendant, P. D., has brought an application to challenge the admissibility of that evidence. The remaining defendants join in this application. Background [ 2 ] The defendants stand jointly charged with assault causing bodily harm and threatening R.A. and assault of H.T. The defendants deny the allegations.

Each has pleaded not guilty. [ 3 ] The alleged incident occurred on February 20, 2019 at Grimston Park in New Westminster, B.C. where a group of female middle school students had gathered after school. All the persons involved are young persons under the Youth Criminal Justice Act S.C. 2002. [ 4 ] The Crown alleges that the defendants lured R.A. in the company of her friend H.T., to an isolated part of the park and collectively assaulted the complainants. R.A. sustained a concussion from the incident.

The Crown maintains that bystanders filmed the incident and circulated it on social media. [ 5 ] Shortly after the alleged incident, J.S., the former boyfriend of R.A., saw a video forwarded to his cell phone through SnapChat. He said it showed R.A. on the ground being kicked multiple times. [ 6 ] There is no copy of the video. It has never been in the possession of the Crown or the police. Issues on voir dire: [ 7 ] Is the testimony of J.S. regarding his observations of the content of the video admissible? Evidence of J.S. [ 8 ] J.S. was the only witness to testify in this voir dire .

He is 16 years old and the former boyfriend of R.A. They broke up in March 2020. [ 9 ] He testified that he saw R.A. on the evening of February 20, 2019. She confided in him that the defendants had assaulted her at Grimston Park. He attended the hospital that evening with R.A. and her parents. [ 10 ] Sometime later, J.S. received a SnapChat video on his smartphone. There is no evidence about its source. It came without introduction or warning.

J.S. surmised that the video was part of an Instagram story. [ 11 ] He testified that SnapChat videos are of limited length and longer videos could be broken into smaller segments to comply with the parameters of that platform. He understood that dividing a longer video into segments would not change the actual video content. He described a video clip of 5-7 seconds. [ 12 ] As to the content of the video, J.S. described seeing R.A. curled up in a cannonball position on the ground. He saw legs repeatedly kicking her all over her body. He saw her face before she moved her hands to cover it.

He said R.A. remained passive throughout. [ 13 ] There is no copy of the video. J.S. saw it once and has not seen it on any other social media platform. Shortly after seeing the video, he advised R.A. that he had seen it. The Defence position [ 14 ] As previously stated, this is a defence application to challenge the admissibility of the evidence of a Crown witness, J.S. Counsel for the defendant P.D. maintains that the testimony of J.S. is not admissible because: 1. His testimony about the video is secondary evidence regarding an electronic document as defined under the Canada Evidence Act , R.S.C. 1985, Chap.

C-5 (“ CEA ”) and does not meet the requirements of sections 31.1-31.8 of the Act; 2. His testimony regarding the video offends the Best Evidence rule; 3. His evidence of the content of the video is hearsay. [ 15 ] Counsel for the remaining defendants adopt the submissions and position of Ms. Mirsky’s client P.D. on this application.

The Crown position [ 16 ] The Crown submits that the defence argument is inapplicable because the Crown is not seeking to tender a document, electronic or otherwise, in evidence. [ 17 ] It maintains that there is longstanding authority that Courts may consider viva voce testimony regarding a lost or unavailable video. The video is not available and no copy has been located. [ 18 ] It maintains that J.S.’s observations are relevant and do not offend the Best Evidence rule. It submits that such evidence is not hearsay and that any questions arising go to weight and not admissibility.

Authorities Cited [ 19 ] The Defence relies on the following cases:

• R. v Ball, 2019 BCCA 32; • R. v Hirsch, 2017, Sask CA 14; • R v Duncan et al, 2016 ONSC 1126; • R. v Soh, 2014 NBQB 20; R. v Avanes et al, 2015 ONCJ 606; • R. v Mondor, 2014 ONCJ 135; • R v Hamdan, 2017 BCSC 676; together with sections 31.1 to 31.8 of the CEA. [20] For its part, the Crown relies on: • R. v After Dark Enterprises Ltd., 1994 ABCA 360 , 94 CCC (3d) 574 (Alta CA); • R. v Pham, 199 BCCA 571 (BCCA, leave to appeal to SCC refused); • R. v Pires, 2012 ONCJ 713, and • R. v C. (J), 2013 ABCA 157.

Law and Analysis [21] It is trite law that the burden is on the party tending the evidence to establish its admissibility. [22] I have read and considered all the authorities cited. They offer helpful guidance but most are not on all fours with the issue in thisvoir dire. [23] For brevity, I will not reproduce the relevant provisions of the CEA sections 31.1-31.8.

I accept that those provisions provide aframework to receiving electronic evidence with provisions to prevent fraudulent or tampered documents from misleading the court. [24] That being said, the provisions of sections 31.1-31.8 of the CEA do not change the law regarding the admissibility of electronicdocuments.

Those provisions serve as a guide to litigants and the court on the Best Evidence rule and the authentication of documents,See R. v Mondor 2014, ONCJ 135 at parargraph 31; R. v Hirsch 2017 SKA 14 at paragraphs 18 and 23. [25] In Duncan (supra) cited by the defence, the Court admitted the viva voce testimony of an airport manager regarding hisrecollection of business records that were no longer available: see paragraph 28 of that decision. [26] The remaining cases cited by the Defence involve instances where the Crown sought to tender either photographs, screencaptures (Hirsch), Facebook pages (Hamdan), invoice content (Mondor), a DVD of extracted Blackberry messages (Avanes), Facebookmessages and screen captures (Ball and Soh). [27] In this case, the Crown is not seeking to tender any document.

This is a subtle but important distinction. J.S.’s testimony relatesto his own observations of a video forwarded to his cell phone months ago and no longer available. [28] Courts have addressed the admissibility of viva voce evidence and lost videos in a number of cases.

See: After Dark Enterprises(supra, testimony of by law officers of lost store video admitted); Pham (supra, oral testimony of police officer describing documentsand photographs at the accused’s home admitted); Pires (supra, testimony of gas station attendant admitted as to contents of missingsurveillance video.) [29] In R. v C. (J.) (supra), the Alberta Court of Appeal (citing After Dark and Pham) reached the following conclusion as to theadmission of a witness’s observation of the contents of a video that was no longer available: [15] In After Dark Enterprises this court rejected the contention that the prosecution could not call any other evidence if realevidence on the same point was available to be seized and had not been seized.

It commented that to do so would extend the bestevidence rule far beyond its original purpose, which was simply to avoid fraud and forgery: at para 9. What is common to both cases isthat the video was simply not available, and the Crown has provided an explanation as to why the video was not available. [16] In our view the best evidence rule does not preclude the admission of viva voce evidence of persons who observed the video(see R v Pham, 1999 BCCA 571 at paras 18-25, 129 CCC (3d) 539). However, the evidence may vary greatly in its weight andreliability.

In this case, the trial judge was entitled to admit the evidence of the police officers who testified about what they observed inthe video, and to give it the appropriate weight.

It was only one item among several pieces of evidence, which the trial judge found to beconfirmatory of the identification evidence. [30] More recently, the Supreme Court of B.C., citing the Alberta Court of Appeal in R. v C (J) (supra) opined on this issue inMohamed v Intertransit 2015, BCSC 1300 at paragraphs 62 and 64: [62] Furthermore, in both the criminal and civil context, there are numerous examples of oral evidence being led in instances wherethe video or documentary record of such evidence has been lost or destroyed; see e.g. R. v. J.S.C., 2013 ABCA 157at paras. 14-16; Bankof B.C. v.

Smart (1988), (BC CC), 35 B.C.L.R. (2d) 21 at 24 (Co. Ct.); Surfwood Supply Ltd. v. General AlarmsLtd., [1976] B.C.J. No. 1067 at para. 26 (S.C.).

……. [64] Counsel for the plaintiff also accepts that the fact Ms. Martin testified to what she observed on a recording, notwithstanding the fact that that recording has since been lost or destroyed, does not give rise to a hearsay concern. This conclusion is confirmed, for example, in R. v. Mesfin , 2012 ABPC 115 at paras. 25 , 28, and in Taylor v.

Chief Constable of Cheshire , [1987] 1 E.R. 225 at 230 (Q.B.) . [ 31 ] In Duncan , the Court in addressing the Best Evidence rule cited and followed the decision in Garton v Hunter [1969] 2 Q.B., where Lord Denning stated at paragraph 44: It is plain that Scott L.J. had in mind the old rule that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded. That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in your hands, you must produce it.

You cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. [ 32 ] As previously stated, the Crown is not purporting to introduce a document into evidence. J.S. testified about his own observations of a video that he saw once that is no longer available. His recollection of the content is consistent with other evidence in the Crown’s case.

The Defence has had the opportunity to test J.S.’s recollection in cross-examination. [ 33 ] I find that J.S.’s evidence does not violate the Best Evidence rule and is not hearsay based on the authorities noted above. Any issues as to its value go to weight, not admissibility. His testimony about his observations of the content of the video is admissible. _______________________________ The Honourable Judge T. Alexander Provincial Court Judge